McGowan v. Chi. & N. W. Ry. Co.

• Decision Date: 22 October 1895
• Citation: 64 N.W. 891,91 Wis. 147
• Court: Wisconsin Supreme Court
• Parties: MCGOWAN v. CHICAGO & N. W. RY. CO.

91 Wis. 147

64 N.W. 891

MCGOWAN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Oct. 22, 1895.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by James McGowan against the Chicago & Northwestern Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought for the recovery of damages sustained by the plaintiff from an injury received while in the employ of the defendant, and engaged in the line of his duty as brakeman, and by reason of its alleged failure to provide a reasonably safe and suitable track and roadbed upon which he might perform his duties; his left arm having been caught between the deadwoods or bumpers of two cars which he was attempting to couple together, and crushed. The charge of negligence is that, where the plaintiff attempted to make such coupling at a point on a side track from its main line and yard, running to certain manufacturing works in Madison, called the “Furnace Track,” the defendant “negligently and carelessly failed to keep and maintain its roadbed * * * in a firm, substantial, or proper condition, in that said roadbed at said point was not properly ballasted up so as to be firm and solid, and the ties upon which the rails rested were old and rotten, and that said track at said point was exceedingly shaky and infirm, especially during the spring of the year, by reason of the larger amount of moisture incident to that season of the year,--all of which facts existed, to the knowledge of the defendant, at the time of said injury, and long prior thereto,” but of which the plaintiff was ignorant; that at the time of the injury the defendant had backed a train of cars in upon said track from the north, in order to couple to and take out a car standing on said track at said point; that the stationary car and the southerly car in the train to which it was to be coupled were both heavily loaded, and were equipped with a coupling appliance called a “double deadwood,” consisting of two iron buffers attached to the end of each car, one on each side of and contiguous to the drawbar, and so adjusted that the bottom thereof was about even with the top of the drawbar, and so that when two cars thus equipped came together to be coupled the ends of the buffers nearly met; that the top of said deadwoods extended so far above the drawbars on said cars that it was impossible to make a coupling by reaching over said deadwoods and inserting the link, but it was necessary, in order to insert it, to reach under such deadwoods; that, after the plaintiff had stepped upon the track between said cars to make the coupling, and while he was so reaching under the deadwoods to insert the link in the coupling attached to the stationary car, with due care and caution on his part, yet, owing to the negligence of the defendant in thus failing to keep and maintain its roadbed and track in a substantial manner, the cars, buffers, and drawbars suddenly and without warning sank or fell two or three inches, and the plaintiff's left forearm was caught between the deadwood or buffers of said cars, and injured as alleged, he being wholly unable to adjust his arm to the altered elevation of said drawbars and deadwoods in time to avoid injury. The defendant admitted that the plaintiff was injured while attempting to make a coupling of said cars, but alleged that his injury was caused by the want of due care on his part, and denied all other material allegations, save its corporate existence. At the trial before a jury the plaintiff testified as to the manner in which he received the injury, in substance that he walked down the west side of the track to make the coupling, and walked in on the track on the south side of a covered culvert three or four feet wide, in front of the moving car, and fixed the link in it; the other, or stationary car, being about eight or nine feet ahead of him, and was loaded with pig iron, and there were about three cars being pushed down to be coupled onto it, and the one next to him was loaded in the same manner. “After I fixed the link in the moving car, I walked down ahead, and fixed the pin in the stationary car, and waited there. I had one foot over the rail and the other about the middle of the track. * * * I had hold of the link, and was going to put it in the drawbar, and the car sunk and caught me. * * * Just as it got pretty near there, the car sunk, and caught me. I should judge about two or three inches. The place where I got caught was about eight feet south of the culvert, about a foot or so north of a joint where two rails come together. As soon as it caught me, I saw the car sink. That is the first I noticed it. In my judgment, if the track had not sunk, I could have made the coupling without being caught. This settling, in my judgment, was sudden. This was a warm day for that time of the year [in March]. There was water on the ground, caused by melting snow, pretty near up to the rails.” On cross-examination he testified that both cars sunk down; “the bumpers sunk, after they hit me, a bit;” that he was facing towards the stationary car, with his back partially towards the other car, and he was using his left hand to make the coupling; that he thought the rails and ties went down. He was asked, “How could the ties go down without the whole roadbed going down? Ans. The ties were pretty rotten. Ques. That is all you know about it? Ans. I don't know;” and he thought the whole roadbed gave away. On redirect examination his attention was called to what he said about the ties, and he added that “the ties seemed to be rotten at the place where he got hurt”; and on recross-examination, on being asked, “When did you see that the ties were rotten?” he answered, “When I was out there this summer;” that he was out in February and in March, 1894. On redirect examination he was asked whether he saw at that time (about one year after his injury) how rotten they were, and he answered: “Why, the ties were rotton, and badly rotten. There was one that was broke right off, right about where I got hurt; right at the joint of the rails.” John Nader on behalf of the plaintiff, testified to having made an examination of the place where the accident is alleged to have occurred, the plaintiff and one of his attorneys being present, in April, 1894, and to having made a survey and map of the premises, and spoke of the joint in the west rail referred to, and described the situation and contiguous grounds. The defendant moved for a nonsuit, which was denied. On behalf of the defendant, Mr. Cowan, the superintendent, testified that he had been over the track nearly every year, and that he should call it a good, firm, solid track; and that he could not recall any report that there was anything wrong with it, nor had he observed anything “otherwise than that it was a good track.” On cross-examination he said: That he had walked over it three months before, and noticed its condition at the culvert as to the ties, and that he did not notice any place there where the ties were rotted off and the end of the tie gone. If there was no tie under the rail, he would not consider the track in perfect shape, “but we often have ties all rotted out, and call the track safe to do business on.” That if there were two ties rotted off and gone next to a joint in the rail, he would not call it in good condition. George Albright, a switchman, who had known the side tracks at this point from August 15, 1891, to July, 1894, and had been on them very nearly every working day, winter and summer, testified that the track was all right, as far as he knew anything about it. It was firm and solid. Was up in good shape; never noticed that it yielded when locomotives went over it; never knew of its sinking away; and that he was there when the accident occurred. And similar testimony was given by other witnesses acquainted with the place, as the assistant yardmaster, the engineer of the switch engine, and the track foreman. The latter testified, on cross-examination, that the rotting of two ties would not make the road unsafe, and he would leave them in there all the same. He was shown a rotten tie, and asked if he would leave in a tie rotted as bad as it was, and he answered not if he noticed it. He said that: ...